On December 18, 2009, plaintiffs, three Medicaid recipients diagnosed with cerebral palsy, filed a lawsuit against the Commissioner of the Maine Department of Health and Human Services in her official capacity (DHHS). The suit was filed in the United States District Court for the District of Maine and sought relief under 42 U.S.C. § 1983. The plaintiffs alleged that DHHS had violated the Nursing Home Reform Amendments to the federal Medicaid Act (NHRA), 42 U.S.C. § 1396r(e); Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq.; and Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. § 794. The plaintiffs alleged that DHS had failed to accommodate plaintiffs' disabilities and to provide medically necessary treatment in the most integrated setting possible, as required by the ADA, Section 504, and other federal law, and instead forced them into nursing homes where they were functionally segregated from the outside world.
Plaintiffs claimed that they did not require intensive nursing care, and that with appropriate personal care and assistance, they all would be able to live in independently. In addition, none of the plaintiffs had ever been evaluated for or received individualized services appropriate to their needs during their confinement in the nursing facilities, contrary to the NHRA. Plaintiffs sought preliminary and permanent injunctive relief and declaratory relief, seeking to be placed in integrated, community settings such as their own apartments or houses, or small group homes located in the general community, or, if it was determined that their medical conditions were severe enough that they actually required treatment in nursing facilities, that they receive the personalized care required by the NHRA. They also sought litigation costs and reasonable attorneys' fees.
On August 10, 2010, plaintiffs' filed a motion for leave to file an amended complaint, seeking to make the suit a class action. On August 11, 2010, the Court granted the motion, and plaintiffs filed an amended complaint immediately, defining the putative class as "[all] Maine residents who currently are or in the future will be: (1) eligible for and enrolled in [the State's Medicaid program], (2) age 21 or older, (3) have [cerebral palsy, epilepsy, or a condition closely related to mental retardation as defined by federal regulation 42 C.F.R. § 435.1010, not including mental illness, autism, Alzheimer's, or dementia], and (4) who are or should be screened for admission to nursing facilities pursuant 42. U.S.C. § 1396r(e)(7) and 42 C.F.R. §§ 483.112 et seq.2." According to the amended complaint, more than 48 individuals had been identified as meeting this definition. On January 31, 2011, the Court (Judge John A. Woodcock, Jr.) granted the Plaintiffs' motion to certify the class. Van Meter v. Harvey, 272 F.R.D. 274 (D. Me. 2011). The amended complaint sought injunctions requiring that all class members be promptly screened and provided with personalized services as required by the NHRA, and also screened for eligibility for community-based services, and, where appropriate, transferred from nursing homes to community settings. They continued to seek declaratory relief and costs, as well.
The parties began settlement discussions shortly thereafter. On August 25, 2011, the parties filed a joint motion seeking approval of their settlement, and a fairness hearing was held on April 24, 2012. On May 2, 2012, the Court (Judge Nancy Torresen) approved the settlement, dismissing the case with prejudice, retaining the level of jurisdiction required to enforce its terms for three years from the effective date of the settlement.
The settlement agreement required the DHS to establish a Medicaid Home and Community Based Waiver (HCBW) program, which would provide a limited number of qualifying class-members the opportunity to live in community-based settings, providing them with "home supports; community supports; employment specialist services; work supports; home accessibility adaptations; communication aids; transportation services; assistive technology; consultation services and assessments; counseling and crisis services; maintenance occupational, physical and speech therapy; [and] case management and specialized medical equipment to the extent that those services are subject to federal financial participation under the Medicaid program." DHS would allow fifteen class members to opt into the HCBW program in the first year, and add an additional ten spaces in the program each year, until the program reached its maximum size of 75 class members. The settlement indicated that the parties would prefer that the HCBW program be established as soon as possible, but acknowledged that the federal government might require the DHS first establish Intermediate Care Facilities for Other Related Conditions (ICFs-ORC) before accepting its proposal for an HCBW. The parties agreed that if ICFs-ORC were determined to be necessary, the parties would return enter mediation to determine an appropriate extension of the court's jurisdiction over the case.
DHS also agreed to provide the Preadmission Screening and Annual Resident Review (PASARR) and personalized care required by the NHRA.
It appears both parties bore their own costs.
On July 16, 2013, the plaintiffs' filed a motion for mediation, seeking the Court's assistance resolving disputes relating to the PASARR program. They argued that mediation was necessary because the parties had failed to agree on a corrective plan for implementing PASARR within the 150 day window provided by the settlement. At the time of this writing, August, 2013, this motion is pending before the Court.Alex Colbert-Taylor - 08/06/2013